Urzma & Tolan - [2024] FedCFamC1F 206

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Urzma & Tolan [2024] FedCFamC1F 206

File number(s): PAC 4661 of 2020

Judgment of: CURRAN J

Date of judgment: 28 March 2024

Catchwords: FAMILY LAW – PARENTING – Where the mother alleges the father poses an unacceptable risk of harm – Where orders sought for the father to spend no time with the children – Where it is alleged the father sexually abused the child – Where the father has perpetrated family violence against the mother –Where the child has spent no time with the father since separation – Whether there is a meaningful relationship between the father and the child – Whether the mother’s mental fragility poses an unacceptable risk of harm if the child spends time with the father Where unacceptable risk is found – Whether the mother can cope with the child spending time with the father – Whether the risk can be ameliorated by supervision – Where orders made for the father to spend no time – Where orders made for the mother to hold sole parental responsibility.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65DAA, 65DAC

Cases cited:
A v A (1998) FLC 92-800; [1998] FamCA 25

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Blinko& Blinko [2015] FamCAFC 146

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Helbig & Rowe [2016] FamCAFC 117

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Allbright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

R v C [1993] FamCA 62

Re Andrew (1996) FLC 92-692; [1996] FamCA 43

Division: Division 1 First Instance

Number of paragraphs: 209

Date of hearing: 27-30 November 2023

Place: Sydney

Solicitor for the Applicant: Mr Prakash, Prakash Lawyers

Counsel for the Respondent: Mr Shaw

Solicitor for the Respondent: DJ Champan Solicitors

Solicitor for the Independent Children's Lawyer: Ms Moran, Coast Law
ORDERS

PAC 4661 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR URZMA

Applicant

AND:
MS TOLAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

28 MARCH 2024

BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders made in relation to X, born 2016 (“the child”) be vacated and discharged.
2.Within seven (7) days of making any major decision in relation to the child’s education, medical treatment, residence and religion, the mother is to notify Mr Urzma (“the father”) in writing of that decision by email.
3.The child live with the mother, Ms Tolan (“the mother”).
4.The mother and the father do all acts and things necessary to authorise the school that the child is attending to forward a copy of each of the child’s school reports directly to the father.
5.Within fourteen (14) days of the date of these orders, the mother and the father are to do all acts and things necessary to enrol in a parenting after separation course, and to thereafter, complete it, and provide a copy of the certificate of completion to the independent children’s lawyer.
6.The mother and the father are restrained from making denigrating or derogatory statements in relation to the other parent or members of the other parent’s household or family, in the presence or hearing of the child, or by way of electronic communication and/or social media, and from allowing the chid to be in the presence or hearing of any other person making denigrating or derogatory statements in relation to the other parent or members of the other parent’s household or family.
7.Leave be granted to the mother to provide a copy of the report of Dr C, dated late 2023, to her treating psychologist.
8.The mother is restrained by way of injunction, from showing the video of the child (being Exhibit 6 in these proceedings) to the child.

THE COURT ORDERS THAT:
9.The mother have sole parental responsibility for the child.
10.The child spend no time with the father.
11.The mother is to notify the father as soon as practicable in the event the child suffers a significant illness or injury or is admitted to hospital by email to insert email address.
12.The parties have leave to provide the report of Dr C, and of Mr D, to each of their respective treating psychologists.
13.The mother has leave to provide the report of Dr C, and of Mr D, to the child’s treating psychologist.
14.Within 28 days the father is to pay to Legal Aid NSW the sum of $4,774 for his half of the Independent Children’s Lawyer’s costs. The Court notes that the mother is in receipt of grant of Legal Aid in these proceedings.
15.Within 28 days, if he has not already done so, the father is to pay half of Dr C’s costs for appearing to give evidence, in the amount of $1,573.
16.The father is to advise the mother via the independent children’s lawyer of his current email address within 14 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Urzma & Tolan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION

These are proceedings to determine the parenting arrangements for seven year old X, born 2016 (“the child”), who is the only child of the parties to the dispute Mr Urzma, born in 1973 (“the father”) and Ms Tolan, born in 1975 (“the mother”).
X was three years old when her parents separated, which was some months after a serious incident of family violence where the father assaulted the mother.
X has seen her father on three occasions in the years since separation, despite orders having been made for supervised time to have occurred. The mother believes that the father poses a serious risk of physical and psychological harm to the child and seeks no time and no communication orders. The father seeks initially supervised time for three months then alternate weekends, half school holidays, and special events.
ISSUES IN DISPUTE
The matters that are not in dispute are that the child will continue to live with the mother her primary attachment figure, that she has a good relationship with the mother, and that the mother provides X with appropriate care.
The matters identified as being in dispute at final hearing were:
(a)Whether there should be an order for the parents to have equal shared parental responsibility.
(b)Whether the father poses an unacceptable risk of harm to the child.
(c)Whether the father should spend time with the child.
(d)If the father spends time with the child, whether that time should be supervised; and
(e)The impact of any impairment on the mother’s parenting capacity if the father were to spend time with the child.
The Independent Children’s Lawyer (“the ICL”) cited issues of concern relevant to the determination of orders that are in X’s best interest as follows:
(a)The father’s alcohol and substance misuse;
(b)The history of family violence;
(c)The allegations of sexual abuse of the child;
(d)The mental health of the mother;
(e)The identified parenting deficits; and
(f)Insight.
ORDERS SOUGHT
The mother sought orders in accordance with her Amended Response filed on 23 October 2023, that she has sole parental responsibility for the child, that the child lives with her and spends no time and not communicate with the father.
In his minute of orders sought tendered on the final day of the hearing and marked as Exhibit 21, the father sought orders for the mother to have sole parental responsibility for the child with requirements for her to notify him of decisions and ask for his input, and to spend time with the child commencing with two hours of supervised time each alternate Saturday and increasing to unsupervised time alternate weekends.
The ICL sought orders for the mother to hold sole parental responsibility for the child but requiring her to notify the father of decisions, that the father spend no time with the child and ancillary orders including restraints.
PARENTAL RESPONSIBILITY
Parental responsibility is defined at s 61B of the Family Law Act 1975 (Cth) (“the Act”). According to s 65DAC(3) parents sharing parental responsibility to make decisions about major long-term issues in relation to a child are required to:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)make a genuine effort to come to a joint decision about that issue.
The term “major long-term issues” is defined at s 4(1) of the Act as:
in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child’s education (both current and future); and
(b)      the child’s religious and cultural upbringing; and
(c)       the child’s health; and
(d)      the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Act applies a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In the event an order is made allocating equal shared parental responsibility, the Court must consider whether it is in the best interests of, and practicable for, the children to live in an equal time arrangement, or alternatively consider substantial and significant time with the other parent pursuant to s 65DAA.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child’s best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence in accordance with s 61DA(2)(b) of the Act.
Discussion
The mother seeks an order for sole parental responsibility. The father initially sought an order for “joint parental responsibility”, however the final minute he proposed also sought the mother have sole parental responsibility. As discussed later in these reasons I find that there was serious family violence between the parties when the father assaulted the mother. According, the presumption does not apply.
An order for equal shared parental responsibility would not operate in the best interests of the child and I find for the reasons that follow that it is appropriate to order that the mother have sole parental responsibility for the child, as sought by all parties.
When asked by the ICL what he understood was the effect of the orders he was seeking, the father answered that it was his understanding that it was about time he spent and access to his daughter. His evidence was that he wished to make decisions and believed he would be able to communicate with the mother despite not having done so over the past four years.
The father was asked in cross-examination in what ways he respected the mother, and his answer was “I don’t have any communication with her. I respect her for being the mother of my child. But that’s where it is right now. Four years of no communication, so” (Transcript 27 November 2023, p. 53 line 29). The father was unable to identify three parenting strengths of the mother.. At the conclusion of his evidence, he was asked if he could identify any positive attribute of the mother. He could not think of a single positive attribute. This was where the mother has been the primary carer and attachment figure both prior to separation and in the last four years and where she has been the sole parent providing all of X’s emotional, physical, and financial needs. The father said he had completed a number of parenting programs. The father after engaging in three programs remained unable to articulate a positive attribute in X’s mother.
In circumstances where the father holds no positive views of the mother, and where the mother has told X about the allegations surrounding her father, it is appropriate to make the order as sought by consent for restraints on the parties denigrating the other or their respective families in the presence or hearing of the child.
The mother when asked whether she would notify the father of decisions and have regard to his input she said “[y]es, I could do that” (Transcript 28 November 2023, p.196 line 4). There was little evidence of any communication since separation. The father gave some concerning evidence as to not knowing whether or not X even exists. It was on this basis that the ICL submitted that an order for the father to be provided with information in relation to X, such as her school reports, so that he has a basis of information about her which may be of benefit to her in the long-term. I agree, it is in X’s best interests for the father to maintain some connection to her and knowledge of her life in the event that she wishes to reach out to him in her adulthood, and as such I make the order as sought by consent in relation to the provision of X’s school reports. For the same reasons, I also find it is appropriate that the father be informed in the event of X suffering significant illness or injury or being admitted to hospital.
The expert evidence focussed significantly on the impact on the mother’s mental health if she were required to deal with the father, which is dealt with in detail later in these reasons at paragraphs [144]-[148]. In cross-examination the Court Child Expert said of the proposed order for sole parental responsibility including capacity to provide notification or consultation with the father she said:
I wouldn’t necessarily have concerns in regards to the mother notifying the father about decisions that she intends to make or decisions she has made in regards to [X’s] education or health. I would have some concerns about the parties’ ability to communicate in order to consult for the purposes of this order as it is written, given, as I said in my report, the father himself indicated an unwillingness to communicate with the mother, and obviously concerns were raised by the mother herself in terms of the impact of communication and contact with the father on her wellbeing.
(Transcript 29 November 2023, p.227 lines 3-10)
No part of the evidence supported a conclusion that an order for equal shared parental responsibility would operate in the best interests of the child. The evidence is that the parties are unable to communicate and the impact on the mother’s wellbeing has been identified as a reason against consultation. For that reason it is not appropriate to make orders requiring the mother to obtain the father’s input prior to her decision-making, although it is appropriate for her to notify him of the decisions she makes within seven days of so doing as proposed by the ICL. This is supported by the opinion of the Court Child Expert referred to in paragraph [22] above when read in conjunction with the balance of the report, which I accept. As this will require the parties to communicate, albeit to a limited degree, I consider it appropriate to make the order sought by consent that the parties complete a Parenting After Separation course. To facilitate any communication, it is necessary for the father to advise the mother of his current email address and I make that order.
APPLICABLE LEGAL PRINCIPLES
Orders in respect of children are informed under Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Court is required to balance the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations greater weight must be given to the need to protect the children from harm pursuant to s 60CC(2A).
MEANINGFUL RELATIONSHIP
It is ordinarily in the best interests of a child to have a meaningful relationship with both parents, but the Court must focus on whether or not such a relationship as set out by the Full Court in McCall & Clark (2009) FLC 93-405 at [122], will derive a positive benefit for the child. Such relationship is one that is “important, significant, and valuable to the child” as at [26] of Mazorski & Allbright (2007) 37 Fam LR 518.
The mother
There was no suggestion that the child would live with anyone other than her mother who is the child’s primary carer and with whom she has a good relationship.
The father
The parental separation occurred when X was just over three years of age. Other than on two occasions since separation, and the time spent between the child and the father during the funeral week of the father’s brother in November 2019, she has spent no time with the father.
The mother’s evidence is that X does not have a relationship with the father currently. She reported to the Court Child Expert that X “previously had a “pretty close” relationship with the father and did like to “hang out” and have fun with [the father], identifying that she views X’s relationship with [the father] in “a whole new way now though”.
The mother gave evidence that X recently visited a restaurant and became upset at seeing people of similar physical appearance to the father and that X said “maybe the father misses her and that if she spends time with the father and asks him ‘not to be bad, he won’t be’”.
The Court Child Expert in her report opined that:
85.It does not appear to be in dispute that [X] does not have a meaningful relationship with [the father], having not spend time with him approximately three years. [X] presented during interview as having little recollection of [the father], although desirous of a relationship with him, which is consistent with [the mother]’s account. [X’s] views appeared to be based on a generalised preference to have a relationship with her father and, particularly, to spend time with family who she shares similar physical attributes with, rather than being indicative of a desire to spend time with [the father] based on lived experiences of him.
(Family Report dated 10 November 2022)
X does not have a meaningful relationship with the father. The mother has remained in contact with the father’s daughters of a previous relationship, X’s half-sisters, who are involved in her life and provide X with access to her paternal family through her adult paternal sisters and culture.

X has expressed an interest in spending time with her father and was previously reported by the mother as enjoying time with her father pre-separation. There is an obvious benefit to a child in having a relationship with both parents if a child will derive a positive benefit from it.
It is a very significant decision that a child at such a young age may not spend time with a parent. Such a decision is one that is not made lightly and should only be made after careful consideration of the evidence of the parties and the experts.
For the reasons that follow, I am not satisfied that that X would derive a positive benefit from having a relationship with her father without exposing her to unacceptable risk of harm. I am not satisfied that the risk can be ameliorated.
NEED TO PROTECT THE CHILD FROM HARM
Per Isles & Nelissen (2022) FLC 94-092, in assessing unacceptable risk I am required to have consideration to all of the circumstances, including historical conduct, and consider whether or not there is sufficient evidence to make a finding on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of future harm arising.
As identified in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138]-[139], the risk of harm must be heeded even if they are “improbable eventualities” which “at some point on the continuum the risk of harm becomes so potent it cannot be tolerated and is unacceptable.”
The single expert Dr C and the Court Child Expert both prepared reports that were in evidence and both were cross examined. That expert evidence has been of significant importance in this matter. The expert evidence is not determinative of an outcome and indeed it is essential that the evidence is weighed and considered with the totality of all evidence in order to make the findings of fact and orders that are ultimately in X’s best interests. In this case the experts each had a different focus, Dr C’s being the mental health of the mother and the Court Child Expert’s being the parenting arrangements for the child.
Risks to the child
Alleged risk to the child arising from the mother’s mental health
The father raised a question as to the mental health of the mother following which the Court Child Expert recommended the mother be assessed. Accordingly, the report of clinical psychologist Dr C was obtained.
His findings were that the mother was not suffering from symptoms with “sufficient severity” to diagnose the mother with a diagnostic condition under the DSM-5 but found that he accepted the “significance and reality of [the mother]’s distress and traumatic experience associated with her relationship with [the father]”. In the preparation of his report, Dr C consulted the mother’s treating psychologist Ms B.
Dr C opined that the mother showed insight and a willingness to improve her parenting. He opined the mother would likely benefit from ongoing therapy with her current psychologist and gave evidence that he discussed at length with the mother’s psychologist the ongoing benefit of treatment for the mother. Ms B indicated a very clear willingness to provide ongoing therapy to her.
I am not satisfied that the mother’s mental health poses an unacceptable risk of harm to the child. I am satisfied that the report of both Dr C and the Court Child Expert should be able to be made available to any psychologist for the mother, father or the child and I will make that order.
Sexual abuse risk
The mother alleged that the father had sexually abused the child and that he posed a risk of unacceptable harm as a result. The mother’s evidence is that the father made a comment to her, not long before separation, that “your son is so weird, he will probably sexually abuse his sister one day and if I ever find out that he has, I am taking full custody of [X], so be warned”. The mother was of the view that the father could be projecting, and as such she asked X whether anyone had hurt or touched her down there and asked her to demonstrate using a doll. X then pulled back the legs of the doll and licked between the doll’s legs. This incident was filmed by the mother and the video tendered into evidence as Exhibit 6. X was three years of age at the time.
The mother alleged that X continued to exhibit sexualised behaviour following contact with the father, including putting things inside her vagina in the bath. The mother’s specific contentions as to X’s sexualised behaviour included:
(a)That the mother observed X putting things inside her vagina when in the bath or pool and when asked why X said “What. Daddy puts fingers in there”;
(b)When changing X’s nappy, the mother observed X spread her legs apart and pull the “lips of her vagina apart” and said “Daddy does this”;
(c)That X said to the mother “Daddy says I want bum bum for breakfast”;
(d)That in about March 2021, the mother walked into the children’s playroom and saw E jump up from between X’s legs and X said “Don’t tell her [E]. Don’t tell her” and when the mother enquired what they were doing, E said “We are playing boyfriend-girlfriend”; and
(e)That in early 2021 the mother observed X putting her hand down her pants and rubbing her vagina upon seeing photographs of the father.
Following what the mother contends were increasing disclosures and sexualised behaviour, the mother ceased X’s time with the father on or about October 2019, though he continued to have telephone and video calls with X. In 2020, the father’s brother passed away. During the two-week period of the funeral, X spent time with the father in the home of his parents, in the presence of many people. Since then, the father has spent no time with X.
The mother asserts that she took X to F Hospital for an examination, who referred the mother to G Health Service. The mother’s evidence was that she attended G Health Service for assistance approximately 12 times. The mother also contacted JIRT after visiting the hospital with X to report her concerns, with the COPS records indicating a report made in late 2019.
It was determined by JIRT that the complaint was unsubstantiated, and the case closed in early 2020. X was interviewed by investigators on two occasions and made no disclosures. The history of the police investigation is set out in the COPS narrative contained in Exhibit 9. The mother’s evidence was that the case was closed because she was unable to attend upon the police to be interviewed, as her son E was frequently in and out of hospital “having, like, [multiple medical episodes] a day”. The mother’s oral evidence was that, around the time of making the report to police in relation to X’s allegations, E was “taken to [H Hospital] every two weeks by ambulance.”
The COPS narratives support the contention that the mother was contacted on several occasions but did not provide a statement. Exhibit 14 contains Department of Communities and Justice (“the Department”) reports from a Q Family Services Referral Form, which records that E has been diagnosed with a medical condition. The records state that on on two occasions in late 2019, E was admitted to hospital. Exhibit 14 also states:
[E] is currently in hospital. He was transferred via ambulance from [F Hospital] hospital to [H Hospital] as an emergency […]…[the mother] has weened [E] off certain medications against medical advice. [the mother] believes that the side effects to the [medication] [E] was becoming a harm to himself. Due to stopping the [medication], [E] started having [medical episodes] that did not stop for over 30 minutes, causing the need to be taken to hospital via ambulance, being [treated] and transfer to paediatric intensive care in [H Hospital] to restart the medication as well as [other treatment] for management […], under the current admission.
(Exhibit 14)
The mother denied that it was her ceasing the medication which caused this admission as she said that nothing stopped the episodes. I accept from the mother that this was a difficult period, and that E was in and out of hospital around the time of the police investigation.
The mother told police that her sister was another witness who was aware of X’s disclosures. The COPS record at Exhibit 9 says that the mother was apprehensive in providing details due to their estrangement, but her evidence in cross-examination was that she did provide the police with her sister’s mobile phone number, and that she did not remember being unwilling as recorded by the police.
The allegation of the father’s sexual abuse of X was unable to be particularised by the mother. She gave no precise evidence of what occurred and was unable to say with any certainty when the abuse occurred, her evidence being that “it could have been happening her whole life. I’m not sure.”
The mother maintained her allegation that the father poses a risk of sexual abuse. To substantiate this, she relied on the disclosures from X (as referred to above), and also an allegation that the father had raped her sister. The allegation is that the father raped the mother’s sister in the bathroom of the parents’ home. The mother stated that she was informed by the maternal grandmother that the father had raped the maternal aunt in or about early 2020. She deposed that she then had a telephone conversation with the maternal aunt in mid-2020 and she asked her to come over to discuss it, though that did not occur. The mother did not call the maternal aunt, maternal grandmother or any family member to give evidence in respect of that allegation.
As often cited from M v M (1998) 166 CLR 69, a positive finding of sexual abuse should not be made by a court unless satisfied on the balance of probabilities, with regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, including feeling actual persuasion. I am not satisfied on the balance of probabilities as to the allegation made that the father sexually abused X.
The next step is to consider all of the evidence before the court, including of historical conduct and circumstances, to determine whether there is a possibility of future sexual harm occurring to X in the care of the father.
The highest the evidence reaches is the mother asserting the child made disclosures of the father sexually abusing her to her mother, describing and re-enacting what she says occurred and reporting the words the mother says X allegedly said. The alleged witnesses that corroborate X’s disclosures were not called. The police investigation found the allegations to be unsubstantiated and without corroboration and noted no disclosures were made. The recording of X was noted by Dr C as being “disastrously leading and so unreliable such that no disclosure arising could be considered by the Court with confidence.”
The allegations of rape of the mother’s sister was not supported by any record or any evidence of a report to any police, doctor or other person nor was the allegation substantiated in any way. I am not satisfied there is evidence of the alleged sexual assault.
As opined by Dr C in his report:
no conclusion can be reached as to whether any sexual abuse did occur, though regardless, this clinician can at least conclude that [the mother’s] concerns about them are sincere. That is to say, it cannot be confirmed whether abuse has occurred but there is no evidence to suggest that [the mother] has made the allegations up.
(Single Expert Report of Dr C dated 14 November 2023, paragraph 97)
Dr C’s said in oral evidence that he “certainly did not form the view” that the mother was fabricating the complaints also supported that conclusion.
I am not satisfied after considering all of the evidence referred to above that there is evidence of any circumstance that would give rise to a possibility that the father could cause sexual harm to X, as such I find that the father does not pose an unacceptable risk of sexual harm to X. I accept however the opinion of Dr C as confirmed by the mother’s evidence that she held a genuine belief that the risk exists and is a real and genuine concern.
Physical abuse risk
An incident of family violence occurred on or around early 2019, when the mother asserts that the father came home drunk and asked her to have a conversation about the parties separating, and that her response was that she was too tired. The father then dragged the mother out of the bed onto the floor and [assaulted her]”. The mother asserts that she sustained a swollen lip and has endured hearing problems since the assault. The mother also asserts that the father threatened to “bash up” her son. Both children were at home at the time.
The father’s sworn evidence gives no account of the assault and simply says he was charged and pleaded guilty. He reported at the Child Dispute Conference (“the CDC”) “that [the mother] had pushed him during an argument and that he had pushed back in self-defence, hitting her lip as he did” (Child Dispute Conference Memorandum dated 27 January 2021, paragraph 2 ).
The father reported to the Court Child Expert:
44.…that he had been trying to leave the relationship for six months and [Ms Tolan] “would not go”, he tried to speak to her and she refused and “brushed past me”, describing this as the moment “when my lid blew”. [Mr Urzma] stated that he “grabbed [Ms Tolan] and […] her” “around the face area”. When asked if [Ms Tolan] sustained injuries, he said “nah, she never went to hospital or anything like that” before going on to state that [Ms Tolan] was “a little bit bruised around her lip” the following morning, adding that the injury was not to the extent that she required an ambulance.
(Family Report dated 10 November 2022, paragraph 44)
Annexure B to his affidavit is the police statement containing the details of the assault, the injuries sustained, that she called for help from the balcony of her son’s upstairs bedroom, that neighbours called triple zero, that police attended and that they observed her son sitting on the ground hiding underneath a bed sheet in the room where the mother was. The mother’s evidence is that she attended the GP the following day.
When asked about what he believed the impact of this incident was on the children, his answer was that X was “devastated” because he was not able to return to the home.
He showed no insight into the reality of the impact on the mother of her physical injuries or of the psychological impact, and no insight into the impact on the child or her brother in being present in the house at the time. He also showed no understanding of the impact of his lack of control. As the father described it, the assault followed a discussion where he said “my lid blew” following which he violently assaulted the mother. No evidence was presented by the father that indicates he has developed any more insight than he displayed at the point of separation. He has had the benefit of a Child Inclusive Conference report, a Family Report and the single expert report as well as the annexed opinion of the mother’s psychologist. He fails to engage with let alone acknowledge the impact of events that have led to the current circumstances.
The father was convicted for this incident and was sentenced.
The Court Child Expert opined that:
98.While [the father] acknowledged punching [the mother], he did not present as accepting responsibility for his choice to perpetrate physical violence, instead justifying his behaviour. His account was focused on the impact of his choice to perpetrate family violence on himself, and he presented as minimising the impact of this incident on [the mother]’s physical and psychological wellbeing and as demonstrating little understanding about the potential impact on [X] of being exposed to family violence (e.g. hearing the incident or seeing the injury to [the mother]). [the father] not taking responsibility for his choice to perpetrate family violence and demonstrating little insight into the impact of his behaviour [the mother], [X], and [E], engenders little confidence that he would not choose to perpetrate family violence in the future if he again perceives this as a justified response to a dispute or altercation. This raises concerns that [X] may be at risk of physical and/or psychological harm in his care.
(Family Report dated 10 November 2022, paragraph 98)
It is not in dispute, and I find that the father violently assaulted the mother as alleged by her. I agree with the opinion of the Court Child Expert, that the father exhibited a concerning lack of insight into the seriousness and impact of his behaviour of a violent assault while the children were home and where the child E was observed to be hiding under the bed sheets.
Another incident occurred in mid-2019, where the mother reported to police that the father had contacted her and said “[i]f you and the kids aren’t gone by the time I get home from work, then one of you is seriously going to get hurt”, and that she had immediately called the police and reported the threat. She called the police station at Suburb J soon after her initial call to state that she did not want to speak to police and that they were not required, she reported the same to the police when they attended at her home. In cross-examination the mother said she told police that she did not need their assistance because “[the father] had just got home and I was really scared to say it in front of him.” I am satisfied that the mother called the police seeking assistance due to the threat and that she was fearful once he returned home which was the reason she then said she did not need assistance. I accept her evidence as to the family violence and threats.
A report by the mother and children’s treating psychologist, Ms B, is annexed to the mother’s affidavit from page 26, and it, concerningly, records that: “[X] also indicated a number of other frightening and stressful incidents including, witnessing DV (on her brother from [Mr Urzma] and on the night her mother was attacked by [Mr Urzma])”. I note that Ms B was not a witness in these proceedings and her evidence was not tested by cross-examination, so the details as to how this information was procured is not available to the Court. However, the report records a report of X witnessing family violence perpetrated by the father, including on her brother E.
The facts of the father’s perpetration of physical abuse of the mother and perpetration of family violence have been conceded. Having regard to the untested evidence of the child’s psychologist, and the uncontested evidence of the Court Child Expert, and the evidence from the CDC memorandum, the child, her brother (being a member of the household) and the mother have been subjected to family violence in the past, on at least the occasion of early 2019 and threats in mid-2019. This finding supports that there is a possibility of future harm of both physical and psychological harm to the child arising from exposure to the father’s violence, temper and conduct. In making this finding I note the violent assault, the father’s lack of insight as to its seriousness and impact, that there was no evidence as to any psychological counselling or acknowledgement of his conduct and that X reported witnessing her father’s violent behaviour to Ms B.
Risk of psychological harm and impact on parenting – the Re Andrew considerations
The decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 set out the correct approach in considering the Re Andrew (1996) FLC 92-692 (“Re Andrew”) principle, as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
(Emphasis added)

In Blinko& Blinko [2015] FamCAFC 146 the Full Court considered the line of authority commencing with Russell v Close (R v C [1993] FamCA 62) and summarised the relevant principles adumbrated in those authorities as follows:
83.It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
It is essential to carefully assess the nature and magnitude of the impact on the caregiver, as identified above. There must be very cogent evidence that the caregiving capacity would be discernibly impaired by any order for time with the father before such an order would be warranted.
In Keane & Keane (2021) 62 Fam LR 190 (“Keane”) the Full Court confirmed at [72] that the task is:
93.…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
The Full Court in Keane at [75] summarised that the authorities relating to the “Re Andrew principle” relating to the impact of a genuinely held belief on the primary caregivers ability to parent has been expressed in a variety of ways including:
a. “may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b. “her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c. “as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d. “genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e. “where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f. “have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81–259];
In this instance the issue of the genuinely held belief about the sexual abuse allegation forms part of the evidence. The other aspect that is weighty in this case is the impact of the actual family violence and psychological abuse perpetrated by the father against the mother, and its impact on her psychological wellbeing as identified by the mother, her witnesses and the experts who gave evidence. Importantly the evidence of Dr C was also informed by the information he received from the mother’s treating psychologist and from the father’s adult daughters with whom he spoke and recorded the comments he considered relevant.
Analysis of the mother’s evidence
The evidence from the Court Child Expert Ms D and the single expert psychologist Dr C, informed also by the mother’s treating psychologist, provides the foundation for my determination that the mother’s emotional or psychological wellbeing would be so affected by orders providing for X to spend time with her father such that it would adversely impact upon her parenting capacity. I have also had regard to the evidence of the mother and father about the incidents of family violence and to the evidence from the mother’s witness Ms O, which I accept, as to her observations of the mother.
The mother’s gave evidence about the family violence to which she was exposed in the presence of E and in the home where X was sleeping. The father lacked insight as to the impact of the event on her. The father showed an inability or unwillingness to engage in any proper way with the issues of risk raised, for example his failure to engage in drug testing as ordered. These are just some of the factors which also support the conclusion that there would be a deleterious impact on her caregiving capacity if orders were made allowing the child supervised time with the father.
The Court Child Expert noted at paragraph 103:
103.[Ms Tolan] may be unable to tolerate [X] spending time with [Mr Urzma], including supervised time, such that it impairs her psychological wellbeing and functioning and therefore has an adverse impact on [X] or results in [X] unable to build or maintain a meaningful relationship with [Mr Urzma] without adverse impact on [X’s] own psychological wellbeing. It may, therefore, be the case that the least detrimental alternative is for [X] to spend no time with [Mr Urzma] irrespective of any determination regarding risk of harm in his care.
(Family Report dated 10 November 2022, paragraph 103)
In cross-examination she maintained that opinion by reference to in particular, the impact of the family violence on the mother as the foundation for the concern about the mother’s ability to cope. This concern was maintained independently of the issue of the allegations of sexual abuse of X.
The expert opined that there is a risk of the impact on the psychological wellbeing on the mother impacting her daily functioning and having an ongoing risk to X. She noted that the mother said she “wouldn’t cope” if the Court determined that X is not at unacceptable risk of harm in the father’s care because there are “so many things that have come up” and that she would be “really scared” if X was to spend time with the father. The expert expressed concerns about the mother’s ability to cope with orders for time. When asked whether there was something more the mother could do to assist with X spending time she said:
Her response in that regard seems reasonable given the father’s behaviour and particularly his unwillingness, at least at the time of assessment, to take responsibility for his behaviour and demonstrate change. And so I don’t know that there’s necessarily anything I would recommend in relation to the mother other than ongoing counselling to assist her to recover from the – any trauma associated with the father’s behaviour. His choice to perpetrate family violence is on him, not on the mother, so it’s about actually assisting her to recover, not wanting her to change her perception of that or wanting her to be any more willing to support [X] spending time with a parent who has perpetrated family violence against the other parent.
(Transcript 29 November 2023, p. 236 lines 4-13)
This is against a background where the father had acknowledged some level of physical and psychological abuse of the mother.
The Court Child Expert opined that:
It is reasonable, given that [Mr Urzma] assaulted [Ms Tolan], that she would experience anxiety about herself or [X] having contact with [Mr Urzma]. It is, however, possible that the adverse impact on [Ms Tolan]’s psychological wellbeing is disproportionate to the risk to [X] in [Mr Urzma’s] care. Irrespective, any deterioration in [Ms Tolan’s] psychological functioning could have an adverse impact on [Ms Tolan’s] parenting capacity and ability to meet [X’s] needs and, therefore, pose an associated risk of harm to [X].
(Family Report dated 10 November 2022, paragraph 100)
The opinion of the Court Child Expert was that the impact on the mother’s psychological wellbeing potentially exposes X to risk. She said:
The mother’s account is in relation to her concerns regarding the father and trust in him, and potentially then looking at what the psychological impact is on the mother of having contact with the father and how that then translates to what [X] is exposed to and how that impacts on [X] long-term.
(Transcript 29 November 2023, p. 237 lines 20-23)
Her opinion was logical and persuasive based partly on the facts not in dispute as to the family violence experienced by the mother, and I accept it.
This risk of harm was also identified by Dr C who undertook an assessment of the mother’s psychological health as referred to in paragraph [112] below. He did not assess the father or the child.
Dr C concluded “[the mother]’s fear and vigilance for the potential of [the father]’s behaviour is based in her own experience of him during their relationship which was also observed and independently reported by both [Mr Urzma’s] older children” (Single Expert Report of Dr C dated 14 November 2023, paragraph 91).
Dr C also expressed concern as to the impact on the psychological wellbeing of the mother if X were to spend time with her father. His report was logical and persuasive. It was not contested in cross-examination. He also opined that:
noting the mother’s anxiety and fears,….should a program of contact progress, the mother’s going to need a lot of support because the child, by and large, has a very limited support network, and so I think the court needs to be suitably cautious about any additional burdens placed on a very, dare I say, precarious support network.
(Transcript 29 November 2023, p. 247 lines 4-7)
This opinion also supporting a cautious approach to time due to concerns as to the impact on the mother’s ability to cope.
I accept the concerns raised and reasoning adopted by both expert witnesses. The mother has had a psychological response to her lived experience of family violence, she has a precarious support network and she has significant other factors such as the stressors of E’s health issues which are also relevant to a possible deterioration in her psychological functioning. The expert evidence together with that of the mother and her witnesses satisfied me that there is an unacceptable risk of harm which has been substantiated and is supported by the expert evidence, of a detrimental psychological impact on the mother and her parenting capacity as a result of the factors identified including the family violence, her belief about the risk of sexual abuse, her precarious support network, and the impact of E’s health.
The mother presented adequate evidence of sufficient weight to satisfy me that the emotional and psychological impact, upon her of the child spending time with the father was such that it could reasonably be inferred that the mother’s parenting capacity would be adversely impacted by such orders.
The father had the opportunity to challenge that evidence through testing the evidence of the Court Child Expert and of Dr C. He did not. There was no challenge that time would be likely to have a deleterious on the psychological health of the mother. That the sexual abuse allegations were not made out is not a significant matter in circumstances where the impact of the family violence equally raises a risk to the mother’s psychological health. The mother’s psychological welfare and Post Traumatic Stress Disorder (“PTSD”) symptoms in the opinion of both experts make her vulnerable.. It is the impact of this prior, during and after time, even if supervised, that in the opinion of both experts lends against such time. Although finely balanced, I am satisfied that the risk to the mother’s psychological health and parenting capacity outweighs the risk to the child of not spending time with her father, and accordingly make the orders sought for no time.
Alcohol and drug risk
Both parties each reported historical drug use and denied current drug use.
The mother alleges that the father had problems with his use of alcohol and drugs, including that he drank every day and that she suspected him of taking drugs due to a “strong burnt smell” in the bathroom, which coincided with mood changes in the father. She also alleged that the former wife of the father’s late brother had disclosed to her that the father and his friends were running a “[drug]” business. The mother reported to the Court Child Expert that she believed the father was using drugs “all the time, every day.” The father denied these assertions.
The father alleged that the parties used illicit drugs together on rare occasions and asserted that since 2020 he has been drinking minimally. He also reported to the Court Child Expert that E’s father is a drug dealer.
In mid-2018, the father was charged and convicted for driving with a prescribed concentration of alcohol twice in the same night, which was conceded and explained by him in his oral evidence as “a big mistake”.
The father tested a positive result for an illicit drug and excessive consumption of alcohol on 21 November 2020 from a hair follicle test. At the CDC interview in early 2021 he denied that he “ever used drugs” and reported that he “recently completed drug testing which was negative for all drugs”. The results annexed to his affidavit at annexure B show that his statement was untrue and that the results had been “released by Lab” on December 4, 2020.
The father was ordered to undergo drug tests on: 4 December 2020, requiring him to undertake testing between 4 and 18 December 2020; 18 March 2021, requiring him to undertake testing six months prior to the hearing; on or about 27 May 2023; and three months prior to the hearing, on or about 27 August 2023. As the ICL set out in her oral submissions, none of these orders were complied with.
The father has a negative drug test from 19 August 2023, annexed to his affidavit at annexure C, although the sample provided was 1.5cm long, which, as the ICL pointed out, does not accord with the intention of the Court ordering three-monthly intervals for testing, designed to cover three months period. The father was also ordered to undertake PEth testing on a monthly basis, which he did not do.
It was conceded by the solicitor for the father that he had ample opportunity, and consented, to undertake drug tests throughout the proceedings to provide satisfactory evidence to the Court, which was not taken up. It was submitted however that in the event the Court finds that there is a risk of harm arising from the father’s use of drugs and alcohol, the Court would be able to make restraints on the father to ameliorate those risks. In circumstances where the father has consistently failed to comply with the drug testing and prohibition ordered prior to the hearing, I have no confidence that any such order ameliorates the risk. I find that the father wilfully breached the order to provide evidence of abstention from drug use. To put it colloquially – he had his chance.
The ICL submitted that she considered proposing orders restraining the father from taking drugs or alcohol or orders that the father participate in further drug and alcohol testing, but ultimately decided against it because the father has had sufficient opportunity and X’s best interests require a decision to be made as soon as possible. I accept that submission.
There is not sufficient evidence to make any finding in relation to the father’s current use of drugs and alcohol, other than that he did test positive for an illicit drug in the past and that he has been convicted of driving for driving with a prescribed concentration of alcohol. He knew of the allegations and elected not to undertake the drug tests at the times ordered. He also provided an insufficient sample of hair as ordered. I am satisfied that the risk of harm of the father using illicit drugs presents the possibility of future harm to X.
Neglect
Much emphasis was placed on the fact that the Department had an investigated the mother for the risk of neglect to E as a result of his medical treatment.
E is diagnosed with a medical condition. I have had regard to Exhibit 14 tendered by the solicitor for the father, which details the reports for neglect concerning E’s condition, including an incident in late 2020 where he was not supervised and self-administered an overdose of his medication, requiring him to be hospitalised.
The mother explained, and I accept, that during this period E was trialled on many different medications and that “nothing was working and he was getting worse and worse.”
The ICL also touched on the concerns raised by the Department contained in Exhibit 23 relating to the mother’s handling of E’s medical treatment and condition. It is noted that the file notes from the Department contained in Exhibit 14 note that the mother has been consistently engaged with New South Wales Health and Q Family Services to improve her parenting.
I do not accept, as suggested by the solicitor for the father that the mother placed E at risk by failing to follow medical advice and exploring her options. She presented as the mother of a child with a rare and complex illness, and I level no criticism at her nor make any findings of risk for exploring alternative treatments in the face of ongoing ineffective treatments and E’s declining health.
E’s rare health condition is not something that directly impacts X. I am satisfied that the evidence of her past care of E’s complex health issues does not support any finding of possible future risk of harm to X. The evidence of Dr C is that the mother has insight and is open to improving her parenting and continues to seek assistance from her counsellor both of which support a conclusion that neglect is not likely.
Psychological harm resulting from the parties’ parenting deficits
The ICL submitted that a risk is the parenting deficits of each of the parties.
The mother
The mother’s mental stability was also raised as a potential risk issue, and an expert report was obtained from Dr C on this limited issue. Dr C opined that his assessment of the mother provided no evidence that she is not of sound mind, nor suffering from symptoms of sufficient severity to fill the criteria for a diagnostic condition.
The report notes that the mother has previously met the diagnostic criteria for post-traumatic stress disorder through assessment by her psychologist Ms B in 2022, but Dr C opined that whilst she does not currently meet the diagnostic criteria “it is clear that she has previously experienced considerable genuine symptoms of anxiety and distress following her separation from [Mr Urzma]”. The conclusion reached by Dr C was that “this assessment does find that there are minimal concerns pertaining to [Ms Tolan’s] wellbeing likely to impact her parenting capacity” (Single Expert Report of Dr C dated 14 November 2023, paragraph 104).

Dr C gave oral evidence that:
noting the mother’s anxiety and fears, is that should a program of contact progress the mother’s going to need a lot of support because the child, by and large, has a very limited support network, and so I think the court needs to be suitable cautious about any additional burdens placed on a very, dare I say, precarious support network.
(Transcript 29 November 2023, p. 247 lines 4-7)
It was submitted that the mother showing X the video recording of herself, marked as Exhibit 6, was an example of a parenting deficit. The mother was challenged during cross-examination in relation to her recording X on video, and then after X reported to counsellor Ms B that she did not remember, showing X the video that was taken years earlier. The mother’s evidence was:
I should have videoed her because I did it for her protection. I don’t believe I should have showed it to her years later and said “Do you remember doing this?” That was really stupid on my behalf, yes.
(Transcript 28 November 2023, p. 116 lines 19-22)
The report of Dr C noted that the mother’s explanation for showing X the video again was that she feared the Court would only believe the records of the police and Ms B which were that X made no disclosures.
The mother showing X the video some years after it was taken, was not child-focussed and is likely to have caused or cause in the future, psychological harm to X, as opined by Dr C, because the allegations “have now become further confounded by [Ms Tolan’s] initial leading discussion with [X] when she provided [X] a doll to ‘demonstrate’ on and even more so by showing it to her again now she’s older, cementing the memory” (Single Expert Report of Dr C dated 14 November 2023, paragraph 25).
Dr C gave oral evidence that, the mother had expressed regret in relation to her actions in showing X the video, this exemplifies “the mother’s insight and her willingness to actually reflect on errors”. I accept that the mother has reflected on her actions and acknowledged that it was a mistake to show X the video. I also accept the evidence of Dr C that his assessment of the mother demonstrated insight describing her as someone saying “there is always something I can do better”. As such, I make the order as sought by consent that the mother be restrained from showing X the video contained in Exhibit 6.
It was observed by both the Court Child Expert and Dr C, that the mother has a permissive parenting style with X. In particular, the Court Child Expert noted that Ms Tolan had a “limited capacity to set and enforce consistent expectations and boundaries regarding [X’s] and [E’s] behaviour”, which is consistent with the evidence of Dr C and the letter of Ms B. The effects of which on the child could include anxiety and insecurity as well as a skewed sense of self and entitlement which could impact the child’s relationships with others. It was not submitted that this poses any risk of harm to the child, however it was noted by the ICL as a parenting deficit of the mother in oral submissions. I understand that the mother continues to engage in therapy with Ms B and indicated no intention to cease doing so, which is what is recommended by the experts to address this deficit.
While there is the possibility of this parenting deficit posing a risk of psychological harm to X the risk is ameliorated by the mother continuing to engage with Ms B as recommended and proposed.
The father
The mother alleged that the father treated her son E poorly. This allegation included reports made to the Court Child Expert that the father would “block [E] out” and treat X “like a princess” whilst he treated E “horribly” including perpetrated physical abuse against E by hitting him, locking him away, and buying X “heaps of presents”.
In cross-examination, the mother gave the following evidence about the father’s treatment of E:
When I was in a relationship with him, he treated my son quite horribly and was really forceful and dominating over him and abusive to him and – and would hit him and put him down, and when he would wet his bed […], he would say, “You’re a wee boy, I’m going to go tell everyone at school that you’re a wee boy,” and just horrible things to him, or we would go swimming and we would be on our way home and he would go – [E] would talk about his swimming and he would go, “You can’t even swim, like you’re a really bad swimmer.” Like, just horrible stuff, like instead of encouraging stuff. And he would lock him away in his room for doing silly little things. If he would move on the lounge, he would get in trouble. If he would chew his food wrong he would get in trouble. And then he would say, “That’s it, you’re in your room every day for the next week. When you get home from school you’ve got to go straight to your bedroom.” Sometimes he would even say, “You don’t get dinner.” Like, he was quite mean and rude and horrible to him, and then he would treat [X] the complete opposite and go and buy presents for her and give them to him right in front of him and buy him nothing. Like he was – he was cruel and he has been cruel to his two daughters as well.
(Transcript 28 November 2023, p. 190 line 47 and p.191 lines 1-16)
It was put to the father that he treated E poorly and his evidence in response to specific questions was that he did, on occasion, send him to his room as a form of discipline, but that he never criticised him for “drinking like a girl”, and denied that the mother had raised with him her concerns about his treatment of E.
Ms K, the daughter of the father from a previous relationship, described to Dr C, observing her father picking on children of his previous partners, including telling a four year old child that he “ran like a poofter”, and Ms K likened this to the type of behaviour he observed the father perpetrate towards E. Ms K recalled that, as soon as X was born, “Dad got really mean to [E]…like sending him to his room for chewing too loud”. This specific allegation was denied by the father. Ms L also described how, about two years into the parties’ relationship, the father “switched” and became “horrible to [E]”.
There was no evidence that E would spend time with the father on either party’s application. This is not a factor that is relevant the determination of orders that are in X’s best interests. There was no suggestion or evidence that the father would say critical things about E to X or how this criticism would otherwise be relevant to orders in respect of X. I make no finding.
The father’s adult daughters
The evidence of the father’s adult daughters, Ms K and Ms L, is contained in Dr C’s report. They were not called as witnesses and the reports they made to Dr C were not tested. The evidence of Ms K and Ms L was consistent, in that they report spending alternate weekends with their father and they did not enjoy their visits. They both described always being around the father and his friends who often drank to excess, observing their father to be verbally abusive to women, that he picked on a child of a previous partner in a similar manner to that they observed with E which was described as “horrible”.
Ms K specifically reported an incident where her sister Ms L was sleeping next to her father on a pull out bed at one of his friends’ homes after a night of drinking, when another male laid down next to her and sexually assaulted her. Ms K reported that that man went to gaol but was unable to recall details. The father was cross-examined on this incident and he acknowledged that this incident did occur when Ms L was seven years old, but clarified “it was indecently assaulted. It wasn’t sexually assaulted”. The father’s correction to “indecent assault” was a minimisation of the severity of the event. The significance of the incident was that seven year old Ms L was not protected by her father.
Ms K reported to Dr C that she had been living with the paternal grandparents at their home, but that arrangement had ceased due to pressure from her father and paternal grandparents “to stick up for him in court” and “write a letter to the judge saying he was a good father” which she refused to do and as a result she was effectively shunned from the family unit and asked to leave the home.
Ms K reported that she has messaged the father on a few occasions in the past few years, including to ask him for money. Ms L reported that she has ceased contact with the father.
The extent of the father’s evidence in relation to his relationship with his adult daughters was that he gets a message from his daughters “here and there” and that he spent time with them every second weekend for 16 years. The father’s evidence in relation to his relationship with his adult daughters, in my view, underplayed the level of conflict that exists, and demonstrates a lack of insight into the impact of his behaviour, particularly in circumstances where he had the benefit of the expert report of Dr C at the time of the final hearing. Although it was revealed at the final hearing that the father had not read the report, his legal team had.
The reports of the father’s older daughters to Dr C do not assist me in making any specific findings of fact, however I take their reports into account as useful corroborative evidence as to the father’s parenting history and insight.
The father’s lack of insight
The fact of the father not having read Dr C’s report prior to the final hearing is, in my view, indicative of his lack of insight, which is a significant issue of risk.
It was submitted that the fact that the father plead guilty to the assault of the mother demonstrated insight into his offending. I do not accept this submission. As set out above, from the Family Report, the father demonstrated no understanding of the impact of his assault of the mother or on the children, who he asserted were sleeping at the time. Rather his focus of the impact was on the fact that he was not allowed to be in the home which caused X to miss him. In explaining his offending, he reported to the Court Child Expert that he had been trying to leave the relationship for months, but Ms Tolan would not leave, and his “lid blew”. When describing the injuries sustained, the father emphasised that the mother did not require hospitalisation or an ambulance, minimizing the matter. As identified by the Court Child Expert:
He seems to blame external forces or didn’t actually make the links between his perpetration of family violence resulting in him not being in the home, and that caused [X] to miss him. So while he was able to identify that there was an adverse impact on [X], he wasn’t able to take responsibility for it.
(Transcript 29 November 2023, p. 240 lines 8-12)
A second example of the father’s lack of insight and lack of accountability was his response to the indecent assault of his older daughter Ms L, where during cross-examination the following exchange occurred:
[MOTHER’S COUNSEL]: I am just suggesting that on one occasion, that [Ms L] was about seven years of age, and was sexually assaulted, while she was in your care?---
[THE FATHER]: Yes. Well, it was indecently assaulted. It wasn’t sexually assaulted. So ---
(Transcript 27 November 2023, p.33 lines 45-47and p.34 lines 1-2)
The Court Child Expert reported that she was concerned that the father did not take responsibility for his choice to perpetrate family violence, as set out above. It was submitted by counsel for the mother that the father is a parent who doesn’t accept responsibility and that “no lengths of time” would cause that to change. I am concerned, and I agree, that despite completing several parenting courses including a Choosing Change, Parents 4 Life, and Circle of Security, the father demonstrated little insight or understanding of the impacts of his behaviour on others. The father’s responses in oral evidence to incidents where harm has been caused to people close to him were dismissive.
I find that the father despite the course undertaken showed no insight or remorse in respect of his conduct in assaulting the mother and showed no insight in respect of the impact of the assault on her and on the children.
DOES TIME BETWEEN THE CHILD AND THE MOTHER POSE AN UNACCEPTABLE RISK TO THE CHILD AS CONTENDED BY THE FATHER?
As referred to above I am not satisfied that the issues identified by the father of neglect, of mental health issues or of drug and alcohol misuse pose an unacceptable risk of harm to the child in the care of the mother. The finding cannot be seriously sought in circumstances where the father accepted the child should live with the mother and should have sole parental responsibility.
DOES TIME BETWEEN THE CHILD AND THE FATHER POSE AN UNACCEPTABLE RISK TO THE CHILD?
The time between the child and the father does pose an unacceptable risk of harm to the child. The nature of the asserted risk is of physical and psychological harm.
The risk of psychological harm to the child arises from the impact on the mother of the child spending time with her father in circumstances where the mother holds firmly the belief that the father poses an unacceptable risk to the child, is the first identified risk.
The mother also asserted a risk of physical harm arising from the allegation of sexual abuse of X by the father and from the physical risks arising from the father’s past family violence, past drug use and alcohol abuse.
I find, for the reasons discussed below, that time between the child and the father does pose an unacceptable risk of psychological harm to the child.
In understanding the issues for the single expert psychiatrist, the following questions became relevant:
(a)Does the mother have the capacity to facilitate time supervised or unsupervised?;
(b)What is the risk to the mother’s parenting in the event that unsupervised time is ordered?;
(c)What is the risk to the mother’s parenting in the event the supervised time is ordered?; and
(d)What orders are least likely to lead to further court proceedings?
It is the first of those questions that falls to be answered in relation to the assessment of risk. The evidence supports the conclusion that the mother does not have capacity to facilitated time, supervised or unsupervised for the reasons that follow.
The mother’s capacity to facilitate time
A report provided by Ms B is annexed to the mother’s affidavit. The notes of Ms B referenced by the ICL recorded that the mother saw Ms B from mid-2021 and that the last session prior to final hearing was September 2023, and that she saw her approximately monthly for one hour each appointment. Ms B also saw the children for seven sessions, both with and without the mother present.
The mother’s evidence was that she sought out Ms B’s help for trauma and also to deal with the children’s behaviours, including X’s disclosures.
Ms B’s report annexed to the mother’s affidavit is not dated. The report records that the diagnostic test for PTSD was administered to the mother in July 2022, and she scored 66 where any score above 31 indicates a high likelihood of PTSD diagnosis. The report states the test was administered again in May 2022, though this must be a typographical error if the first session the mother had with Ms B was in July of that year. The second test result was 44.
After reviewing the assessment of Ms B, Dr C opined that it is likely that the mother did meet clinical criteria for PTSD but that it is “currently managed, with some symptoms of anxiety and hypervigilance still present but not causing disproportionate interference in her day-to-day life” (Single Expert Report of Dr C dated 14 November 2022, paragraph 89).
The evidence supports the conclusion that facilitation of time between the child and her father, even if supervised, may impact upon the mother's functioning given the symptoms of anxiety and hypervigilance being still present.
Whilst the Court must have the child’s best interests squarely at the centre of the inquiry, consistently with the application of the paramountcy principle, it is permissible to take into account the impact of proposed orders on the uncontested primary carer of the child. It was submitted, and I accept that, orders for time may negatively impact the mother’s functioning, which in turn may have the “flow on effect” and on balance are likely to impact on the child: AMS v AIF (1999) 199 CLR 160 at [208].
I discuss the parties’ evidence about family violence, allegations of sexual abuse, allegations of risk arising from drug and alcohol misuse, elsewhere in these reasons and, while I do not find that the child’s time with the father needs to be supervised because of a concern that the father may inflict physical harm on her, I remain concerned, given my findings, that the mother would experience facilitation of time between the child and the father as difficult and likely to be productive of the symptoms she has described to Dr C due to her firmly held beliefs. In addition to this, I accept that X has been exposed to family violence perpetrated by the father, and that this causes a risk of psychological harm to her if she was to spend time with him.
The mother’s case was that her experience of the father and her dealings with him had caused her to suffer psychologically and physically. The mother relied on an affidavit by her treating psychologist, Ms B, whose report detailed that the mother reported symptoms of:
generalised anxiety across situations, agoraphobia, anxiety for her children’s safety, hypervigilance, exaggerated startle reflect, flashbacks, nightmares, sadness, shock, disbelief, shame, fear, confusion, isolation, sleep problems, and changes in mood connected to cognitions related to her child’s trauma, difficulty concentrating and feelings of being cut off from others.
(Annexure A, Affidavit of the mother sealed 27 October 2023)
Dr C noted in his report, that the mother’s answers in interview aligned with what was reported by Ms B, specifically that she isolated herself from the outside world. I accept that the mother has reported to her treating psychologist a deep confusion, disbelief and fear of the father.
The objective evidence available to the Court does not support a finding that the child would be at risk of physical harm in the supervised care of the father. The mother does not accept this. I find that the mother is not able to see the situation except through the lens of her own experience. Accordingly, she exhibits what the Court Child Expert refers to as a “genuine fixed belief” about the sexual abuse of X by the father. That causes her to interpret otherwise innocuous events negatively. Some examples include her reports in relation to the child touching her own genitals or spreading her legs apart being characterised as sexualised behaviour.
Both experts gave evidence about whether the mother would be able to cope with the father spending time with the child.
Dr C’s evidence was:
I think the mother – without speaking for her, but I – I strongly got a sense that if – if she had evidence that the father was actually acknowledging some of their history and some of the factors that had contributed to this, and was undergoing a change process himself, that would be a substantial contributor to allaying her fears. In the absence of that, I think her fears are going to remain very much forefront and – and be a potentially disabling feature in pathways forward.
(Transcript 29 November 2023, p.255 lines 11-17)
The Court Child Expert’s evidence was:
100.It is reasonable, given that [Mr Urzma] assaulted [Ms Tolan], that she would experience anxiety about herself or [X] having contact with [Mr Urzma]. It is, however, possible that the adverse impact on [Ms Tolan’s] psychological wellbeing is disproportionate to the risk to [X] in [Mr Urzma’s] care. Irrespective, any deterioration in [Ms Tolan’s] psychological functioning could have an adverse impact on [Ms Tolan’s] parenting capacity and ability to meet [X’s] needs and, therefore, pose an associated risk of harm to [X].
(Family Report dated 10 November 2022, paragraph 100)

The Court Child Expert expanded in cross-examination and opined that she was concerned about potential psychological or emotional harm occurring to the child due to the mother’s reaction to the child spending time with the father. Her evidence was that:
if the mother is unable to cope with the child spending time with the father due to, say, anxiety, triggering of potential post-traumatic stress disorder…. or other psychological deterioration of the mother, that can have an impact on [X] in terms of the mother’s ability to provide adequate care for [X].
(Transcript 29 November 2023, p.225 lines 34-38)
As observed by Dr C, the mother and X have a limited support network. The mother reported to Dr C that she has constant communication with her elderly parents who both suffer from health issues and live nearby, and that she lives close to her older sister, but has no contact with her younger sister. The mother also has the support of Ms K and Ms L, though they do not live close by and see each other intermittently. The mother also had support in these proceedings from her aunt and godmother, and from her friend. I agree with Dr C’s observation that a suitably cautious approach should be taken before disrupting a very “precarious support network”.
The mother has a limited support network. I accept the opinion of the Court Child Expert and find that a deterioration in the mother’s psychological functioning could have an adverse impact on the mother’s parenting capacity and ability to meet X’s needs and, therefore, pose an associated risk of harm to X. Her anxiety and psychological health supports the finding that if time were ordered it would likely cause a deterioration in her psychological functioning.
Father’s insight
Other than the father’s lack of insight into his perpetration of family violence as addressed above, a further cause for concern about any proposal for unsupervised time arises out of the evidence from the father as to how he would respond to questions from X about why she has not spent time with him. His evidence was that he would “love to tell her the truth”, being that her mother did not allow them to have a relationship for four years. This was consistent with what he reported to the Court Child Expert during the Family Report interviews. He was unable to say whether there would be any negative impact on X of telling her “the truth” in cross-examination, but to the Court Child Expert he suggested that X would be “disappointed in her mum”.
The father denied that he wanted to do so in a way that undermined the child’s relationship with her mother, giving evidence that in his previous relationship he has never told his older children “about their mother, or my side of the story”, but maintained that his preference would be to tell her the truth.
At trial, the father was unable to acknowledge any correlation between his behaviour, including the violent assault on the mother, and the mother’s psychological functioning. His understanding that the “truth” is the mother did not allow then to have a relationship for four years with no acknowledgement of his role in the current situation illustrates the depth of his lack of insight. That lack of insight poses risk of psychological harm to both the child and the mother, and by extension to the child.
Can the identified risk be ameliorated?
It is necessary to evaluate the evidence and each parties’ proposal to ensure that the resulting orders are necessary and proportionate to the identified risk.
The various methods available to the Court to address the identified risks to the children include: the imposition of injunctions, orders that a parent spend no time, orders for professional or lay supervision, orders for long term supervision, or a graduating schedule of time with progress being contingent on things such as drug and alcohol testing or completing of education or therapy.
The father sought orders for supervision as the means of ameliorating the identified risks, if such risks were found to be unaccepted. Despite the expert evidence and the mother’s evidence it was not conceded by the father that there was an unacceptable risk of harm, psychological or physical.
I have identified there is an unacceptable risk of psychological harm to the child due to the mother’s reaction to the child spending time, as well as psychological harm due to X’s exposure to family violence through the father’s perpetration of same and lack of insight into his offending and his understanding of the “truth” that the mother has in essence created the situation by not allowing the child to spend time with him for four years.
Can the risks be ameliorated by supervision?
Counsel for the father submitted that the mother’s anxiety could be ameliorated by orders for contact in a supervision centre which removes any risk of physical harm arising or from the father’s use of drugs and alcohol. I accept that if the issues were limited to protection of X from physical harm arising from violence and drug use, that drug screening and supervisions could ameliorate that harm.
The risks are not limited to the physical risks or even psychological risk to X. The crux of this case is, in fact, the impact on the mother’s parenting capacity. It was submitted by counsel for the father that the mother’s acceptance of the father spending time with X is a matter that can be addressed by her ongoing psychological treatment. I do not accept that submission because: the mother was seeking ongoing psychological treatment throughout the proceedings which did not ease her anxiety as to the father spending time; the single expert and Court Child Expert did not accept that supervision would be sufficient; the mother’s mental health is managed but is vulnerable; and the mother has limited other supports and significant other stressors.
On 18 March 2021, an order was made for supervised time at a supervised contact centre on the central coast. The investigation into the reports of sexual abuse of X had been closed by JIRT by that time.
Exhibit 10 contained notes from M Family Services, which appear to be dated mid-2021. They record that the mother was questioned by, and she reported, amongst other things, that; the father has heavy alcohol and illicit drug use, the father had recently been charged for an assault, the father she believed the father had undiagnosed mental health issues, X had disclosed sexual assault, there was a history of domestic violence, and that the father bullied her son. The notes also reference the JIRT investigation and that the case was suspended.
Exhibit 11 contains further notes of M Family Services, which documents information received from the child’s psychologist. The opinion of the psychologist recorded in the notes is that they hold concerns about X spending time with the father, especially if he has not “been rehabilitated”. The date of the interaction between M Family Services and the psychologist appears to be mid-2022.
The entry in late 2022, records the advice given by M Family Services to the mother, that the contact centre had notified her that contact would not proceed due to the outcome of the intake assessment. The mother was also advised by M Family Services, as noted in Exhibit 11, that if the father tried to go to a different contact centre to advise M Family Services as there is an information sharing protocol.
A number of services were nominated by the father’s legal representatives, but the mother did not contact any of them, her explanation being that she didn’t know she was meant to do that, but that she passed the information onto her lawyer.
As a result, the father spent no time with X and the Court is without the benefit of any evidence of how time would progress or what their relationship is or could be like.
It was submitted by counsel for the mother that the evidence of the experts, as well as the mother’s conduct in the witness box, supports the contention that the mother would experience heightened anxiety if the father were to spend time with X which would cause a deterioration in her health and her parenting capacity. It was his submission that there was nothing that could ameliorate the identified risk to the mother’s psyche and “knock-on” risk to X as a result.
The ICL in her submissions cited paragraph 97 of the Court Child Expert’s report which says:
97.…if it is determined that [X] is not at unacceptable risk of harm in [Mr Urzma’s] care and she should spend time with him, [X] being aware of, and exposed to, anxiety experienced by [Ms Tolan] regarding her spending time with [Mr Urzma] is likely to undermine [X’s] ability to build a meaningful relationship with him. This could be due to [X] associating spending time with [Mr Urzma] negatively solely due to the impact of this on [Ms Tolan] and not based on her experiences with [Mr Urzma] or [X] behaving in a protective manner towards [Ms Tolan], which may result in her being resistant to separating from her in order to spend time with [Mr Urzma].
(Family Report dated 10 November 2022, paragraph 97)
The Court Child Expert also gave oral evidence that whilst supervised time can protect a child from risks of physical harm, there is still a risk posed by potential psychological harm including the undermining of the other parent, especially in circumstances where there are existing parenting deficits associated with that parent’s perpetration of family violence. To protect from that harm, the Court Child Expert opined, you would require a “very, very vigilant supervisor”.
The Court Child Expert also opined that:
I would have concerns about [X’s] ability to build a meaningful relationship with her father within a supervised context, based on her not having an established relationship with him at the present moment in time, and the artificial nature of the supervised contact centre, and that she potentially isn’t getting a full view of who her father is, and him as a parent. So the ability to build a really true meaningful relationship is – is reduced as a result of the circumstances. So I – I wouldn’t recommend long term supervised time. If the risks are such that supervised time is necessary, at least on the interim, my recommendation would be leaning towards no time.
(Transcript 29 November 2023, p.241 lines 40-47 and p.242 line 1)
It was submitted by the ICL that this evidence from the Court Child Expert demonstrates that, due to the risk posed to the psychological stability of the mother, the child’s primary carer, supervised time would not be in the child’s best interests as “before each contact, during each contact, after each contact, the mother will be heightened emotionally” due to her fixed belief that the child is at risk of harm whilst spending time with the father. I understand this evidence to ground the ICL’s application for no time with the father.
No party or the ICL made any reference to the principle of Re Andrew but the crux of the mothers case was that, in the circumstances of this case, any time between the father and the child would cause such a level of distress and anxiety in the mother so as to sufficiently affect her parenting capacity, such that no time could be tolerated. This is because in effect it would so negatively impact the parenting of the one capable parent X has.
In making orders for the child to spend time with the father I am to weigh up the meaningful relationship of the child with the parent as well as the need to protect the child from harm. In X’s case there is currently an absence any meaningful relationship in existence that would weigh in favour of exposing the child to any risk of harm.
I am persuaded by the evidence of the experts that the identified risk to X is significant and even with a very, very vigilant supervisor, the impact on the mother before, during and after time, and on her parenting of X is too great, is unacceptable, cannot be ameliorated and is not in her best interests. As such, I order that the child spend no time with the father.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
I address each of the additional considerations which have not already been considered in these reasons below.
s 60CC(3)(a) - Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
It was submitted by the solicitor for the father that X has expressed a wish to see her father. The evidence is that X became upset upon attending a restaurant and seeing people who look like the father she said, “[m]aybe my dad misses me, and maybe if I go there and tell him not to be bad, he might not be bad”. The Court Child Expert opined that X was expressing a desire to be around family with similar physical attributes to her, rather than expressing a desire to see her father. In any event, I give little weight to the views of the child as a result of her young age and level of maturity. This position was reported by the Court Child Expert, who opined that:
85.[X] does not have a meaningful relationship with [Mr Urzma], having not spent time with him approximately three years. [X] presented during interview as having little recollection of [Mr Urzma], although desirous of a relationship with him, which is consistent with [Ms Tolan’s] account. [X’s] views appeared to be based on a generalised preference to have a relationship with her father and, particularly, to spend time with family who she shares similar physical attributes with, rather than being indicative of a desire to spend time with [Mr Urzma] based on lived experiences of him. As such, and with regard to [X’s] age and developmental stage, it would be recommended that little weight be given to her stated views.
(Family Report dated 10 November 2022, paragraph 85)
s 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons (e.g. grandparents)
When interviewed by the Court Child Expert, X identified her family as comprising of her maternal grandparents, the mother, her brother, her sisters Ms K and Ms L, and another person who she referred to as E’s “assistant”. The mother denied that there is another person in her life and that E has or has had an “assistant”.
I have found earlier in these reasons that the child has a close relationship with her mother and has no existing relationship with her father, though I accept the evidence of the mother that they previously had a close relationship.
I accept the mother’s evidence, and the evidence contained within the report of Dr C, that X maintains connection to her paternal family through her half-sisters Ms K and Ms L. I accept that they provide support to X and are important people in her life.
The mother’s godmother, Ms N, also gave evidence in support of the mother’s case, which primarily went to her observations of the mother and the children post-separation. I accept her evidence that she resides near the mother and child and that she provides support to them.
The paternal grandparents both swore affidavits in these proceedings. Their evidence was that they both spent time with X up until December 2019 and that they wish to pass on their religion and values to X. They were not required for cross-examination. I accept their evidence. The mother’s evidence was that she did not invite the paternal grandparents to spend time with the child as she understood they were angry with her, as they lived with the father, and because she does not like how they treat their other grandchildren, being Ms K and Ms L.
The father’s sister gave evidence that she enjoyed a close relationship with her nieces and nephews including X, though she had not seen her since 2019. Her evidence was that she also enjoyed a close brotherly relationship with the father, who she respected as a father, and that she hoped her own daughter would be able to spend time with her cousin, being X. The mother’s evidence was that she had not reached out to the paternal aunt because she “seemed pretty angry” with her at the time of separation.
The mother gave evidence that she is in contact with the father’s former sister-in-law and her children (X’s cousins), and that they have been planning for the cousins to have a sleepover.
In my view, the child will maintain a connection to her paternal family as facilitated by the mother, despite having no contact with the father though X’s sisters and through X’s cousins.
s 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The mother has been X’s primary carer since at least the parties’ separation in 2019, she has also had the benefit of an interim order affording her sole parental responsibility for X since 18 March 2021 and she has exercised that responsibility. The father has not been involved in decision making for X. The father contended that this was not of his own volition and that the mother’s refused to communicate with him. He said that until the week prior to the final hearing, which commenced 27 November 2023, he was unaware of what school X was attending. This does not accord with the evidence as his own solicitor has subpoenaed P School in late 2023 and the Family Report released on 22 November 2022 recorded that X was in kindergarten at P School. The criticism is not warranted. His decision not to be informed of the contents of the Family Report when his current lawyers appeared for him at that time, is not something the mother can be criticised for.
s 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father does not pay child support for X and has not done so since separation. The mother’s evidence was that she has not applied to the agency for child support as she “wanted nothing to do with him” but gave evidence that financial support would be helpful as X could do extra-curricular activities. The father acknowledged that he has not put aside money or transferred money to the mother to make provision for X. There is no application before me to do with child support and as such I do not propose to traverse all of the evidence in relation to same, though I have taken it into consideration in making the orders I consider to be in X’s best interests.
s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances
The orders I have determined are in the best interests of the child will not change her current circumstances as she presently has no contact with the father.
s 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration.
s 60CC(3)(f) - the capacity of the each of the parents and any other person to provide for the needs of the child (e.g. emotional and intellectual needs)
I have addressed the parenting deficits of each of the parties above and, in particular, the potential reduction of the mother’s parenting capacity if the child is to spend time with the father. Apart from those matters, there is no evidence before me that the mother is unable to provide for the emotional and intellectual needs of the child.
I am not satisfied that the father would have capacity, due to his limited insight as detailed earlier in these reasons, to provide for the needs of the child, particularly her emotional and intellectual needs, if he was to spend time with her, particularly in circumstances where they do not have an existing relationship and there is a complex history as to why.
s 60CC(3)(g) - the maturity, sex, lifestyle and of the child and of either of the child’s parents
This has been addressed in the reasons above, particularly in respect of the father’s historical use of drugs and alcohol and the mother’s alleged neglect of E through her view of medical treatment.
s 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

The mother has been the primary carer for X and has made all decisions for X since separation. I accept that the mother cares for both of her children and I note the evidence she gave in relation to her focus on the children’s “healing”, as to her attitude to her responsibility for the children’s emotional and psychological wellbeing.
I accept that the father has a desire to be in X’s life, as he reported to the Court Child Expert his desire to be there for X, to support her, and to see her be a “successful girl”. However, I also note the evidence contained in Dr C’s report, detailed above, as to the father’s existing limited relationship with his adult daughters and his lack of insight.
It was submitted by counsel for the mother that the father is a parent who does not accept responsibility for his actions and that is unlikely to improve, unless as put by Dr C, the father is able to approach his adult daughters to repair his relationship with them. I do not accept the state of the father’s relationship with his adult daughters is a major consideration as I do not have clarity about their situation. The evidence of the father’s estranged relationship with his adult daughters, however, does provide some evidence as to the father’s attitude to parenthood of those children, which I take into consideration.
s 60CC(3)(j) - any family violence involving the child or a member of the child’s family
The history of family violence is relevant and this consideration is addressed earlier in these reasons.
s 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order
A family violence order was taken out in 2019 at the time of separation and this consideration is addressed earlier in these reasons.
s 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am satisfied that the orders made are those least likely to lead to the institution of further parenting proceedings.
PAYMENT OF THE ICL’S COSTS
At the conclusion of the final hearing the ICL sought an order that each party pay half of her costs, being $4,774 each totalling $9,548. It was submitted on behalf of counsel for the mother that she is disadvantaged. She is in receipt of legal aid and Centrelink, and has never been in receipt of child support, as such she bears the costs of the children alone. It was submitted that to ask her to contribute to the costs of the ICL would be a burden too far. I agree, and as such I decline to make an order for the mother to pay half of the ICL’s costs.
It was conceded by the solicitor for the father that he should contribute to half of the ICL’s costs. As such, I order that the father contribute $4,774 to the costs of the ICL.
PAYMENT OF DR C’S COSTS
It was submitted by the ICL that the total cost for Dr C’s appearance at final hearing was $3,146, with the father required to pay half in the amount of $1,573. The solicitor for the father conceded that the father should pay for half the ICL’s costs and his portion of Dr C’ attendance at hearing, and I will make that order.
CONCLUSION
I am satisfied that the orders made are in the child’s best interests.

I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 28 March 2024

File number(s):	PAC 4661 of 2020
Judgment of:	CURRAN J
Date of judgment:	28 March 2024
Catchwords:	FAMILY LAW – PARENTING – Where the mother alleges the father poses an unacceptable risk of harm – Where orders sought for the father to spend no time with the children – Where it is alleged the father sexually abused the child – Where the father has perpetrated family violence against the mother –Where the child has spent no time with the father since separation – Whether there is a meaningful relationship between the father and the child – Whether the mother’s mental fragility poses an unacceptable risk of harm if the child spends time with the father Where unacceptable risk is found – Whether the mother can cope with the child spending time with the father – Whether the risk can be ameliorated by supervision – Where orders made for the father to spend no time – Where orders made for the mother to hold sole parental responsibility.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65DAA, 65DAC
Cases cited:	A v A (1998) FLC 92-800; [1998] FamCA 25 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Blinko& Blinko [2015] FamCAFC 146 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Helbig & Rowe [2016] FamCAFC 117 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Allbright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 R v C [1993] FamCA 62 Re Andrew (1996) FLC 92-692; [1996] FamCA 43
Division:	Division 1 First Instance
Number of paragraphs:	209
Date of hearing:	27-30 November 2023
Place:	Sydney
Solicitor for the Applicant:	Mr Prakash, Prakash Lawyers
Counsel for the Respondent:	Mr Shaw
Solicitor for the Respondent:	DJ Champan Solicitors
Solicitor for the Independent Children's Lawyer:	Ms Moran, Coast Law

PAC 4661 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR URZMA Applicant
AND:	MS TOLAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	28 MARCH 2024